Key Insight: Court sustained objection to award of costs for ?monthly expenses associated with maintaining a database of electronically stored information used to locate, retrieve, and store the plaintiffs? emails.?
Electronic Data Involved: Taxable costs
Key Insight: Where plaintiffs intentionally destroyed all paper and electronic copies of relevant financial information despite a duty to preserve citing the burden of storage, the court found that the destruction was in bad faith, but that the prejudice was minimal where other sources of evidence provided sufficient information to support Defendant?s defenses and thus ordered an adverse inference at trial; where one plaintiff was a Certified Public Accountant, court considered her professional capacity when considering the willfulness of the destruction, noting that it ?strains credulity? that an accountant would throw away all financial documents because of ?storage space?
Nature of Case: Breach of Contract
Electronic Data Involved: ESI (financial data)
Key Insight: Where Defendant sought to avoid production or allocate costs related to the production of allegedly inaccessible information based on the alleged cost and burdens related to processing and review but acknowledged that some of the ?raw data associated with the documents? was accessible, the court concluded that the affidavit from an attorney for the defendant?s counsel who had not ?attested to having a technical understanding of, or background in, electronically stored data? was not by itself ?enough evidence? to demonstrate that the at-issue ESI was not reasonably accessible and ordered defendant to submit additional evidence re: whether the information was stored in a ?readily usable format?
Nature of Case: Breach of contract, breach of duty of loyalty, misappropriation of trade secrets and tortious interference with a business relationship
Electronic Data Involved: ESI
Key Insight: Where Plaintiff sought ?physical access? to Defendant?s electronic devices based on the belief that Plaintiff failed to perform a thorough search, the court overruled objections to denial of the motion where Plaintiff failed to show that Defendant was in possession of any of Plaintiff?s company documents and where Defendant responded adequately to discovery, including hiring an outside party to perform forensic examination of the computers and utilizing hundreds of search terms proposed by the plaintiff
Nature of Case: Breach of employee confidentiality agreement, breach of fiduciary duty, unjust enrichment, tortious interference with contract, tortious interference with prospective economic advantage, and civil conspiracy
Electronic Data Involved: ESI
Key Insight: Court granted motion to compel production of computer used by Plaintiff for her work with Defendant?s competitor upon concluding that its likely contents would ?arguably be relevant to claims that Plaintiff unethically competed with her employer? among other things, and ordered Plaintiff to produce the computer as it had been stored in the ordinary course of business and that the computer be provided to a third-party vendor for imaging and then returned to Plaintiff
Nature of Case: Wrongful termination, “claims that Plaintiff unethically competed with her employer”
Electronic Data Involved: ESI
Key Insight: Court denied plaintiff?s motion for temporary restraining order which requested restrictions on defendant?s assets, and orders prohibiting destruction of evidence, expediting discovery, allowing plaintiff access to defendant?s email and social media accounts, and for the return of a laptop because the court found plaintiff failed to demonstrate it was likely to suffer irreparable harm absent injunctive relief. In asserting it would suffer irreparable harm, plaintiff argued defendant had demonstrated she would not observe her obligation to preserve evidence, but provided no evidence in support of this claim. Stating that ?suspicions are not a proper ground for injunctive relief,? the Court noted that counsel for each defendant were ?expected to advise their clients of their duty to preserve potentially relevant evidence and the serious consequences for failing to do so,? but denied further relief.
Nature of Case: Misappropriation of Trade Secrets; Breach of Contract
Electronic Data Involved: Email, social media, laptop
Key Insight: Court addressed topic of key word searching and sustained in part and overruled in part Defendant?s objections to the Magistrate Judge?s order to run all searches proposed by the Plaintiff where certain terms were vague or duplicative; court laid out framework for resolving disputes regarding search terms deemed overly burdensome, including a requirement that the parties confer in good faith before coming to the court
Nature of Case: Claims alleging defect in m
Electronic Data Involved: ESI (search terms at issue)
Key Insight: Court addressed 3rd party?s motion to quash allegedly burdensome subpoena and to preclude further production or to require the defendant to pay for the non-party?s expenses and found that the defendant had demonstrated its needs for ?most of the categories of documents? but also concluded that the 3rd party?s objections should be sustained in part and modified the subpoena?s requests to reduce the burden; Court rejected arguments that 3rd party?s lack of a ?dedicated IT specialist?, use of cloud based email and need to rely on employees? and or hire a vendor establish burden; court also found that ?by producing the documents in non-readable PDF format without the metadata specified by the subpoena?s instructions, and failing to serve any written objections to those instructions, p202 failed to comply with Rule 45(a)(1)(C) and 45(e)(1)?s requirement to comply with the subpoena?s specification of a form for producing ESI? and ordered re-production in accordance with the subpoena?s instruction
Electronic Data Involved: ESI
Key Insight: Court held clerk did not err in awarding costs for ?loading documents into an electronic data base for production to Plaintiff on computer disks during discovery.?
Electronic Data Involved: Taxable costs
Key Insight: Circuit Court denied petition for certiorari relief to quash Trial Court order compelling discovery of photographs from Plaintiff?s Facebook account, finding no departure from the essential requirements of law, because the photographs were ?powerfully relevant to the damage issues in the lawsuit,? Plaintiff?s privacy interest in them were minimal because ?photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established,? and the Stored Communications Act ?does not apply to individuals who the use the communications services provided.?
Nature of Case: Personal Injury
Electronic Data Involved: Facebook/social media photographs
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